district of columbia plaintiff, proskauer · pdf filecase no. 1:17-cv-00901-abj...

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UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

JANE DOE, PLAINTIFF, v. PROSKAUER ROSE LLP, DEFENDANT.

Case No. 1:17-cv-00901-ABJ

PLAINTIFF’S RESPONSE TO DEFENDANT’S STATEMENT OF MATERIAL FACTS

Plaintiff objects to Defendant’s Statement of Material Facts as premature at this early

juncture of this litigation. Federal Rule of Civil Procedure 56 and Local Civil Rule 7(h) both

contemplate the completion of adequate discovery prior to summary judgment proceedings. No

discovery has been conducted in this case, however, and Plaintiff does not presently possess

sufficient information to fully confirm or deny Defendant’s contentions, as well as their potential

implications. Plaintiff will be in a position to fully respond to Defendant’s statements of fact after

the completion of discovery. Plaintiff reserves the right to supplement or revise any or all of the

responses below after the completion of discovery.

Further, Plaintiff objects to statements within Defendant’s Statement of Material Facts that

do not pertain to Defendant’s summary judgment motion on the question of whether Plaintiff is an

“employee” of Proskauer under relevant statutes but instead relate to other issues such as

Defendant’s motion to dismiss or the merits of Plaintiff’s claims that she was discriminated and

retaliated against by the Firm. In any event, the intermingling of such statements into Defendant’s

Statement of Material Facts suggests that the issues in this matter are intertwined and that full

discovery should proceed on all aspects of the case.

Subject to and without waiver of the foregoing objections, Plaintiff responds as follows:

Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 of 35

1. Proskauer is an intemationallaw film of approximately 740 lawyers in 13 offices ru·ound the world. (Declru·ation of Joseph M. Leccese, Esq., dated June 13, 2017 ("Leccese Decl.") ~ 3.)

RESPONSE: Undisputed that Proskauer is an intemational law fitm with h1mdreds of lawyers in numerous offices ru·mmd the world. However, Plaintiff is not a member of Proskauer's Executive Committee- which manages all Film operations- and therefore lacks real-time inf01mation as to the present operational status of all of the Firm's offices. (Plail1tiffDecl. ~50.)

2. Plail1tiff Doe practices in the for which Proskauer is pruticularly well known. (!d.)

RESPONSE: Undisputed.

3. Proskauer is a New York limited liability patinership. (!d.~ 6.)

RESPONSE: Undisputed that Proskauer is registered with New York's Division of Corporations as a domestic registered litnited liability patinership.

4. The relationships among its partners are govemed by the Film's Restated Partnership Agreement dated October 12, 2011, as amended (the "Pruinership Agreement"). (!d.)

RESPONSE: Disputed. Proskauer's Executive Committee enters into separate side agreements with individual partners that modify the tenns of the Prutnership Agreement. (Plail1tiff Decl. ~ 4, 23.) Fmther, Proskauer pattners ru·e also subject to an array of additional policies and directives dictated by Proskauer's Executive Committee. (!d. ~~ 26-38, 40.)

5. The Pru·tnership Agreement is govemed by New York law. (!d.~ 7; Ex. 1 § 23.)

RESPONSE: Undisputed that Proskauer's Patinership Agreement states that it "shall be govemed by the laws of the State of New York applicable to contracts made and to be perf01med wholly within that State." (Leccese Decl. Ex. 1, § 23.) However, Proskauer's Executive Committee enters into separate side agreements with individual pattners that modify the tenns of the Prutnership Agreement that may not be subject to New York law. (Plail1tiffDecl. ~ 23.)

6. The Film' s principal office is located in New York, and the Film maintaillS twelve other offices, including an office in Washington, D.C. (Leccese Decl. ~ 7; Ex. 1 § 4.)

RESPONSE: Undisputed that Proskauer' s principal office is located in New York and that the Film maintains an office in Washington, D.C. However, Plaintiff is not a member of Proskauer's Executive Committee- which manages all Film operations- and therefore lacks real-time inf01mation as to the present operational status of the Film's other offices. (PlaintiffDecl. ~50.)

7. The Film does not maintain an office in Marylm1d. (Leccese Decl. ~ 7.)

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RESPONSE: Plaintiff disputes that this paragraph is relevant to Defendant’s summary judgment motion on the issue of whether Plaintiff’s status as a partner of the Firm precludes her from coverage as an “employee” under applicable statutes. Accordingly, this paragraph should be stricken from Defendant’s Statement of Material Facts. With regard to Defendant’s motion to dismiss Plaintiff’s Maryland Equal Pay for Equal Work Law claim on “extraterritoriality” grounds, Plaintiff properly alleges in her Complaint that Proskauer employed her in Maryland within the meaning of that statute. (Compl. ¶ 10, 99, 111.)

8. The Firm has two types of active partners: equity partners and income partners. (Id. ¶ 8.)

RESPONSE: Disputed. In addition to using the terms “income partners” and “equity partners” to refer to certain active partners, Proskauer also characterizes its active partners as “regular partners” or “contract partners.” (Leccese Decl. Ex. 1 § 3.) Plaintiff seeks discovery regarding the types of active partners at the Firm. (Sanford Decl. ¶ 9.)

9. Doe is an equity partner. (Id.)

RESPONSE: Undisputed that the Firm has used the title “equity partner” to refer to Plaintiff. Notwithstanding this title, the Executive Committee exercises complete control over the terms and conditions of her employment, including controlling her hiring, controlling her compensation, and, according to the position taken in the Firm’s submissions to this Court, claiming the right to unilaterally terminate her employment (Plaintiff Decl. ¶ 14.) Plaintiff seeks discovery to confirm the Executive Committee’s control over the terms and conditions of Plaintiff’s employment. (See generally Declaration of David Sanford (“Sanford Decl.”).)1

10. The term “regular partner” in the Partnership Agreement means an equity partner. (Id.)

RESPONSE: Disputed. This characterization is inconsistent with the language of the Partnership Agreement. The Partnership Agreement does not define a “regular partner” as an equity partner; instead, the Partnership Agreement defines a “regular partner” as “partners actively engaged in the practice of law whose relationship to the Partnership is governed solely by [the Partnership] Agreement.” (Leccese Decl. Ex. 1 § 3.)

11. The term “contract partner” in the Partnership Agreement includes both equity partners whose relationship with the Firm is governed in part by a separate agreement with the Firm and income partners whose rights are different than equity partners. (Id.; Ex. 1 § 3.)

RESPONSE: Disputed. This characterization is inconsistent with the language of the Partnership Agreement. The Partnership Agreement does not specify that the term “contract partner” includes “equity partners” and “income partners”; instead, the Partnership Agreement defines a “contract partner” as “partners actively engaged in the practice of law whose relationship to the Firm is governed wholly or partly by the terms

1 The Rule 56(d) discovery sought by Plaintiff is not limited to the discovery specifically identified herein and is further detailed in the Declaration of David Sanford.


and provisions of a separate contract between each such partner and the Fitm." (Leccese Decl. Ex. 1 § 3.)

12. Each equity partner ofthe Fitm, including Doe, has agreed to the Fum's Partnership Agreement. (Leccese Decl. ~ 9.)

RESPONSE: Disputed. Proskauer' s Executive Cormnittee has requit·ed numerous patiners, including Plaintiff, to enter into separate side agreements with the Fitm that pmpori to modify the tenns of the Firm's Pruinership Agreement and even fmther augment the ah·eady expansive power of the Executive Connnittee. (Plaintiff Dec!. mJ 3, 4, 23.) In fact, the Fitm never asked Plait1tiffto sign the Patinership Agreement. (!d.~ 3.)

13. The rights and obligations of all equity prutners ru·e govemed by the Partnership Agreement, except to the extent specifically modified by an individual agreement between the pariner and the Firm. (Id.; Ex. 1 § 3.)

RESPONSE: Disputed. Proskauer partners are also subject to an anay of policies and directives dictated by Proskauer's Executive Committee that pmport to create additional obligations beyond those set forth in the Prutnership Agreement and the sepru·ate side agreements that the Executive Connnittee requires certain partners to execute. (Plaintiff Decl. ~~ 26-38, 40.)

14. The Partnership Agreement provides for a ''weighted vote" system in which each equity patiner has three votes and, on matters on which they are entitled to vote, each income paliner has one vote. (Leccese Decl. ~ 10; Ex. 1 § 6(e).)

RESPONSE: Disputed. Where a "weighted vote" Agreement grants three votes to each partner") and partner"). authorizes

is to be taken, the Partnership three votes to each "equity

I (not one vote to each "income · further

(!d.) Plaintiff seeks discovery conceming the votit1g rights that Proskauer actually grants to equity pattners who have side agreements with the Fitm. (Sanford Dec I. ~ 9.)

15. Under Section 6 of the Pattnership Agreement, a 75% vote of the partners is requit·ed in order to: (i) admit new partners to the Firm; (ii) amend the Prutnership Agreement; (iii) change the name of the Fitm; (iv) establish additional Fitm offices; or (v) vote on any other matter submitted to a vote of the pruiners by the Executive Committee or by 25% of the Fitm's patiners (unless a lesser vote has been specified in the Patinership Agreement). (Leccese Decl. ~ 11; Ex. 1 §§ 6(a)(i)-(vi), 9.)

RESPONSE: Disputed. This characterization is inconsistent with the language of the Prutnership Agreement. Pmsuant to Paragraph 6 of the Partnership Agreement, these actions involve a ''weighted" vote and requit·e the 75% "weighted" vote of only those eligible pattners who actually vote on the matter. (Leccese Decl. Ex. 1 § 6(a).) Plaintiff seeks discovery conceming the voting rights that Proskauer actually grants to equity pattners who have side agreements with the Fitm. (Sanford Decl. ~ 9.) Fmther, Plaintiff disputes that partner voting rights are a meaningful check on the Executive Committee:

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even with respect to the limited issues that the Partnership Agreement pmp01tedly requires be decided through a vote of the full partnership, the Executive Committee acts 1milaterally, including hiring and firing partners. (PlaintiffDecl., 20.)

16. The Finn' s principal office can be relocated upon a two-thirds vote of all equity partners in which each equity partner is entitled to one vote. (Leccese Decl., 11; Ex. 1 § 4.)

RESPONSE: Disputed. This characterization is inconsistent with the language of the Partnership Agreement. The Partnership Agreement provides that "all partners" (not just .. .,rnl1·1 ·u to vote on relocation of the Film's · · office, subject to (Leccese Decl. Ex. 1 § 4.) Plaintiff seeks discovety conceming the voting rights that Proskauer actually grants to equity partners who have side agreements with the Film. (Sanford Decl. , 9.)

17. The Partnership Agreement requires that partners vote to approve all decisions to (i) expel a partner from the Fitm upon the recommendation of the Executive Committee; (ii) merge with another law finn; or (iii) tetminate the partnership, with a 75% weighted vote of all partners entitled to vote requil·ed to approve such actions. (Leccese Decl., 12; Ex. 1 §§ 6(a)(x)-(z).)

RESPONSE: Undisputed that Par·agraph 6(a) of the Pattnership Agreement contains this provision. However, this tetm is misleading and contradicted by the Fitm's regulaT practices, as the Executive Committee tetminates, or asserts the power to tetminate, pattners without notice to, il1put from, or a vote of the pattnership. (Plail1tiff Decl. ,, 4, 24.) In its submissions to this Court, the Film appears to have taken the position that the side agreement it entered into with Plaintiff at the time of her hire authorizes the Fitm to unilaterally tetminate Plaintiff without any vote of the partnership. (Leccese Decl. , 47.) Fmther, Plaintiff is awar·e of the Executive Committee dil·ecting partners to leave the Film without any notice to, input from, or vote of the full partnership. (Plaintiff Decl. , 24.) Plaintiff seeks discovery to show that the Executive Committee can ar1d does unilaterally tenninate partners without engaging in the voting process set forth in the Partnership Agreement. (Sanford Decl., 5.)

18. The Pattnership Agreement provides for meetings of the partners at least monthly to discuss or decide matters that requil·e a decision by the partners and at which decisions made by the Executive Committee ar·e rep01ted to the partners. (Leccese Decl., 13; Ex. 1 § 5(e).)

RESPONSE: Undisputed that 5( e) of the Pattnership Agreement contains this provision. In practice, however, the Film's pattnership meetings are perfunct01y and do not involve substantive discussions or deliberations by non-Executive Committ.ee pattners regar·ding plans or strategies for the Fim1's fmances, operations, management, personnel, and administration. (Plaintiff Decl. , 19.) The Executive Committee leads and directs discussions at partner meetings, and its rep01ts to pattners are not detailed and do not provide partners with insight into many aspects of the Film' s fmances, operations, management, personnel, and administration. (I d.) The rep01ts that the Executive Committee provides at monthly meetings are typically limited to brief, smnmar·y information regar·ding Fitm fmancial results, pending client representations, and lateral partners approved by the Executive Committee. (I d.) The Executive Committee does not

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encourage partners to engage in substantive discussions or deliberations at partnership meetings, and partners are reluctant to question or challenge decisions made by the Executive Committee. (Id.) Plaintiff seeks discovery to establish that the Executive Committee does not provide complete information to Firm partners concerning its decisions. (Sanford Decl. ¶ 9.)

19. Any partner may request that a matter be placed on the agenda of the partners’ meeting for discussion among the partners. (Id.)

RESPONSE: Undisputed that partners “may” make a “request.” In practice, however, this almost never occurs. Plaintiff recalls only one instance during her time at the Firm when a partner may have requested that an item be added to the agenda of a partners’ meeting. (Plaintiff Decl. ¶ 19.) Further, Plaintiff disputes that merely “requesting” that an agenda item be added provides a meaningful check on the authority of the Executive Committee. The Executive Committee does not encourage partners to engage in substantive discussions or deliberations at partnership meetings, and partners are reluctant to question or challenge decisions made by the Executive Committee. (Id. ¶ 19.) See also Response to No. 18.

20. Pursuant to the Partnership Agreement, the Firm’s partners have conferred on the Executive Committee responsibility for “matters of management, policy and operations.” (Leccese Decl. ¶ 14; Ex. 1 § 5(c).)

RESPONSE: Undisputed that the Firm’s Partnership Agreement provides that “[a]ll matters of management, policy and operations shall be determined by the Executive Committee.” (Leccese Decl. Ex. 1 § 5(c).) Further, Proskauer’s Executive Committee does, in fact, exercise complete control over the Firm’s finances, operations, management, personnel, and administration. (Plaintiff Decl. ¶ 14.) Plaintiff, however, disputes the misleading suggestion that the Firm’s partners played any role in “conferring” this authority upon the Executive Committee. Proskauer partners, including Plaintiff, have no alternative but to submit to the oversight and control of the Executive Committee. (Id.)

21. The Partnership Agreement provides that the Executive Committee’s authority to manage the operations of the Firm “derives from and is delegated by the partners.” (Leccese Decl. ¶ 14; Ex. 1 § 5(a).)

RESPONSE: Undisputed that this is an excerpt from Paragraph 5(a) of the Firm’s Partnership Agreement. Plaintiff, however, disputes the misleading suggestion that the Firm’s partners played any role in “delegat[ing]” authority to the Executive Committee. Proskauer partners, including Plaintiff, have no alternative but to submit to the oversight and control of the Executive Committee. (Plaintiff Decl. ¶ 14.)

22. The Partnership Agreement provides that any and “[a]ll authority not delegated [to the Executive Committee under the Partnership Agreement] is retained by the partners.” (Id.)

RESPONSE: Undisputed that this is an excerpt from Paragraph 5(a) of the Firm’s Partnership Agreement. However, this misleading excerpt is contradicted by Paragraph 5(c) of the Partnership Agreement, which grants Proskauer’s Executive Committee authority over “[a]ll other matters as to which no other or inconsistent provision has been


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made in this Agreement.” (Leccese Decl. ¶ Ex. 1 § 5(c).) Indeed, the Partnership Agreement expressly provides that “[a]ll matters of management, policy and operations shall be determined by the Executive Committee.” (Id.) Proskauer’s Executive Committee does, in fact, exercise complete control over the Firm’s finances, operations, management, personnel, and administration. (Plaintiff Decl. ¶ 14.) Plaintiff seeks discovery to establish that Firm is managed by the Executive Committee (including the Chairman), and not by the partnership generally. (Sanford Decl. ¶ 9.)

23. The Partnership Agreement states that “if by the express terms of [the Partnership] Agreement any matter is to be determined by the Executive Committee or by decision of the partners . . . it shall be so determined or decided, and every such determination or decision shall be final and binding for purposes of this Agreement and not subject to review or modification in any arbitration or judicial proceeding.” (Leccese Decl. ¶ 15; Ex. 1 § 22.)

RESPONSE: Undisputed that this is a quote from Paragraph 22 of the Firm’s Partnership Agreement. Plaintiff, however, disputes that this language, which purports to exempt the Executive Committee’s decisions from judicial or arbitral review or modification, is valid or enforceable. Moreover, this statement has no bearing on Defendant’s summary judgment motion and should be stricken from Defendant’s Statement of Material Facts as irrelevant and improper.

24. As set forth in the Partnership Agreement, the Executive Committee’s responsibilities include the:

(i) determination of fees, profits, expenses, and accounting practices, (ii) allocation of profits among and distribution of profits to the partners, (iii) authorization of banking and safe deposit accounts and signatures, (iv) incurring of capital expenditures, (v) investing funds of the Partnership, (vi) borrowing on behalf of the Partnership, (vii) hiring and discharging of employees, (viii) determinations regarding acceptance of client representation and resolution of conflicts arising in the course of such representation, (ix) determination of all matters relating to the Firm’s insurance and its pension, group life and other plans, (x) equipment and other purchases, (xi) negotiation and execution on behalf of the Partnership of all leases and contracts, (xii) interpretation of this Agreement and (xiii) all other matters as to which no other or inconsistent provision has been made in this Agreement.

RESPONSE: Undisputed that this is an excerpt from Paragraph 5(c) of the Firm’s Partnership Agreement. Paragraph 5(c) of the Partnership Agreement further provides that that “[a]ll matters of management, policy and operations shall be determined by the Executive Committee.” (Leccese Decl. Ex. 1 § 5(c).) Proskauer’s Executive Committee does, in fact, exercise complete control over the Firm’s finances, operations, management, personnel, and administration. (Plaintiff Decl. ¶ 14.) The Executive Committee exercises complete control over the terms and conditions of partner employment, and Plaintiff expects discovery to confirm this (Plaintiff Decl. ¶ 14, 53.)


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25. Under the Partnership Agreement, the Executive Committee may appoint other committees to assist in carrying out its functions, and it also appoints chairpersons to head each of the Firm’s departments after giving due consideration to the views of the partners in each department. (Leccese Decl. ¶ 17; Ex. 1 § 5(b), (f).)

RESPONSE: Undisputed that the Executive Committee appoints committees and appoints chairpersons to head each of the Firm’s departments. Plaintiff, however, disputes that the Executive Committee gives due consideration to the views of partners in each department when selecting chairpersons to head the Firm’s departments. When Plaintiff sought more of a leadership role in her office and department, Chairman Leccese rebuffed her – even though previously he had given glowing assessments of her performance, practice, contributions to the Firm, and leadership skills. (Plaintiff Decl. ¶ 16.) Moreover, when Plaintiff asserted legitimate objections to the selection of a recent Department Co-Chair, her objection was ignored. (Id.) Plaintiff seeks discovery concerning the Executive Committee’s selection of department chairs without considering the input of department members. (Sanford Decl. ¶ 9.)

26. Although the Executive Committee has the authority to manage the Firm’s affairs under the Partnership Agreement, the Executive Committee is also required to submit to the partners any matter that three Executive Committee members “deem of sufficient importance to merit discussion or decision by the partners.” (Leccese Decl. ¶ 18; Ex. 1 § 5(c).)

RESPONSE: Undisputed that the Executive Committee manages the Firm’s affairs and that this paragraph quotes from Paragraph 5(c) of the Partnership Agreement. Plaintiff, however, disputes any misleading suggestion that this clause – which merely permits partners to discuss or decide issues that the Executive Committee itself decides to present to partners – provides a meaningful check on the authority of the Executive Committee. Plaintiff is not aware of the Executive Committee permitting partners to vote on a matter over which the Executive Committee has unilateral authority. (Plaintiff Decl. ¶ 20.)

27. The Executive Committee can—and, at times does—ask the partners to vote on matters that the Executive Committee would otherwise have the authority to decide on its own. (Leccese Decl. ¶ 18.)

RESPONSE: Undisputed that the Partnership Agreement provides that the Executive Committee “can” ask partners to vote, but disputed that the Executive Committee actually does ask partners to vote on matters over which the Executive Committee has authority. Further, Plaintiff disputes that the Executive Committee permitting partners to vote on issues that the Executive Committee itself selects provides a meaningful check on the authority of the Executive Committee. Plaintiff is not aware of the Executive Committee permitting partners to vote on a matter over which the Executive Committee has unilateral authority. (Plaintiff Decl. ¶ 20.) Even with respect to the limited issues that the Partnership Agreement purportedly requires be decided through a vote of the full partnership, the Executive Committee acts unilaterally, including hiring and firing partners. (Id.)


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28. Under the Partnership Agreement the Executive Committee must report to the partners—as it does in monthly meetings—on decisions made by the Executive Committee on behalf of the Firm. (Leccese Decl. ¶ 18; Ex. 1 § 5(e).)

RESPONSE: Undisputed that 5(e) of the Partnership Agreement provides for the Executive Committee to report to partners at partnership meetings. In practice, however, the Firm’s partnership meetings are perfunctory and do not involve substantive discussions or deliberations by non-Executive Committee partners regarding plans or strategies for the Firm’s finances, operations, management, personnel, and administration. (Plaintiff Decl. ¶ 19.) The Executive Committee leads and directs discussions at partner meetings. Its reports to partners are not detailed and do not provide partners with insight into many aspects of the Firm’s finances, operations, management, personnel, and administration. (Id.) The reports that the Executive Committee provides at monthly meetings are typically limited to brief, summary information regarding Firm financial results, pending client representations, and lateral partners approved by the Executive Committee. (Id.) The Executive Committee does not encourage partners to engage in substantive discussions or deliberations at partnership meetings, and partners are reluctant to question or challenge decisions made by the Executive Committee. (Id.) Plaintiff seeks discovery to establish that the Executive Committee does not provide complete information to Firm partners concerning its decisions. (Sanford Decl. ¶ 9.)

29. The Executive Committee consists of seven members, including the Firm’s Chair. (Leccese Decl. ¶ 19; Ex. 1 § 7(a)(1).)

RESPONSE: Undisputed. Proskauer’s compact Executive Committee is all male. Proskauer’s Chairman is, and always has been, male. (Plaintiff Decl. ¶ 10.)

30. The Firm’s partners elect the Executive Committee members and the Chair through the weighted voting procedure described above. (Leccese Decl. ¶ 19; Ex. 1 § 6(c).)

RESPONSE: Disputed. This characterization is inconsistent with the language of the Partnership Agreement. According to the Partnership Agreement, the Executive Committee members and the Chair are elected by a mere majority of the weighted votes of the partners who actually vote. (Leccese Decl. Ex. 1 § 6(c).)

31. Elections are conducted by secret ballot and partners may vote in person or by proxy. (Leccese Decl. ¶ 19; Ex. 1 § 6(g), Exhibit A.)

RESPONSE: Disputed. These votes are typically performed electronically. Plaintiff does not know whether electronic votes are anonymous. (Plaintiff Dec. ¶ 50.)

32. A candidate who receives a majority of the votes cast is elected to the position. (Leccese Decl. ¶ 19; Ex. 1 § 6(c).)

RESPONSE: Plaintiff is not a member of Proskauer’s Executive Committee – which manages all Firm operations and oversees votes – and therefore lacks information as to how votes have actually been tallied in practice. (Plaintiff Decl. ¶ 50.)


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33. All equity partners, including Doe, are eligible to run for Chair or a seat on the Executive Committee. (Leccese Decl. ¶ 20; Ex. 1 § 5(b), 7(c).)

RESPONSE: Disputed. The Partnership Agreement provides that only “regular partners” – not all “equity partners” – are eligible to serve as the Firm’s Chair or on the Firm’s Executive Committee and thus purportedly excludes Firm partners who have separate agreements with Proskauer. (Leccese Decl. Ex. 1 § 7(c).) Plaintiff entered into a separate agreement with Proskauer when she joined the Firm. (Plaintiff Decl. ¶ 3.) Plaintiff seeks discovery concerning the eligibility of equity partners who have side agreements with the Firm to serve as the Firm’s Chair or on the Executive Committee. (Sanford Decl. ¶ 9.)

34. There is no nominating committee that controls who runs for a position. (Leccese Decl. ¶ 20.)

RESPONSE: Undisputed that Proskauer does not have a formal “nominating committee.” However, the Executive Committee effectively controls who is eligible to serve on the Executive Committee by unilaterally deciding whether, and when, to make partners “contract partners” versus “regular partners.” (Plaintiff Decl. ¶ 15.) Plaintiff seeks discovery concerning the Executive Committee’s decisions as to whether, and when, to make partners “contract partners” versus “regular partners.” (Sanford Decl. ¶ 5.)

35. Each equity partner is simply asked whether s/he wishes to have her/his name included on the ballot for election to the position. (Leccese Decl. ¶ 20; Ex. 1 Exhibit A, ¶ 2.)

RESPONSE: Disputed. The Partnership Agreement provides that only “regular partners” – not all equity partners – are eligible to serve as the Firm’s Chair or on the Firm’s Executive Committee and thus purportedly excludes Firm partners who have separate agreements with Proskauer. (Leccese Decl. Ex. 1 § 7(c).) Plaintiff entered into a separate agreement with Proskauer when she joined the Firm. (Plaintiff Decl. ¶ 3.) Plaintiff seeks discovery concerning the eligibility of equity partners who have side agreements with the Firm to serve as the Firm’s Chair or on the Executive Committee. (Sanford Decl. ¶ 9.)

36. If s/he wants to be included, then her/his name will be shown on the ballot. (Leccese Decl. ¶ 20; Ex. 1 Exhibit A, ¶¶ 4, 5.)

RESPONSE: Disputed. The Partnership Agreement provides that only “regular partners” – not all equity partners – are eligible to serve as the Firm’s Chair or on the Firm’s Executive Committee and thus purportedly excludes Firm partners who have separate agreements with Proskauer. (Leccese Decl. Ex. 1 § 7(c).) Plaintiff entered into a separate agreement with Proskauer when she joined the Firm. (Plaintiff Decl. ¶ 3.) Plaintiff seeks discovery concerning the eligibility of equity partners who have side agreements with the Firm to serve as the Firm’s Chair or on the Executive Committee. (Sanford Decl. ¶ 9.)

37. The Chair presides at partner meetings and Executive Committee meetings, and serves a three-year term. (Leccese Decl. ¶ 21; Ex. 1 §§ 5(d), 7(a)(2).)


RESPONSE: Undisputed that the Chainnan presides at partner meetings and Executive Committee meetings. However, the Chainnan has served consecutive three-year tetms. (PlaintiffDecl. ~ 12.)

38. Executive Committee members also serve three-year tetms, which are staggered so that two of the six members' tetms expire each year. (Leccese Decl. ~ 21 ; Ex. 1 § 7(a)(2)-(3).)

RESPONSE: Undisputed. However, Executive Committee members can and do serve multiple non-consecutive three-year tenns. (PlaintiffDecl. ~ 12.)

39. Executive Committee members, other than the Chair, may not setve consecutive tetms. (Leccese Decl. ~ 22; Ex. 1 § 7(a)(3).)

RESPONSE: Undisputed. The Chailman has setved consecutive three-year tenns, and Executive Committee members can and do setve multiple non-consecutive three-yea1· tetms. (PlaintiffDecl. ~ 12.)

40. With lllnited exceptions, no more than two partners on the Executive Committee can be from any one depmiment, and none of the Fim1' s offices may have more than six members on the Executive Committee, includll1g the Chail·. (Leccese Decl. ~ 22; Ex. 1 § 7(a)(5).)

RESPONSE: Undisputed that the Partnership Agreement and office limitations.

Executive Committee IS patiners m New York, ...... ~_...,,, • .., out of the Finn's Washington, D.C. office. (PlaintiffDecl. ~ 13.)

41. In 2014 and 2015, two of the seven Executive Committee members were women. (Leccese Decl. ~ 22.)

RESPONSE: Undisputed. This paltry level of female representation on Proskauer's Executive Committee did not confer any meaningful protection on Plaintiff as a female partner. (PlaintiffDecl. ~ 11.) In addition, Proskauer's Executive Committee is now allmale. (Id. ~ 10.)

42. In 2016, one ofthe seven Executive Committee members was a woman. (Id.)

RESPONSE: Undisputed. This paltry level of female representation on Proskauer's Executive Committee did not confer any meaningful protection on Plaintiff as a female paliner. (PlaintiffDed. ~ 11.) Indeed, the sole female member of the Executive Committee in 2016 had to be recused from the Executive Committee's deliberations concerning her pay. (Id.) In addition, Proskauer's Executive Committee is now all-male. (Id. ~ 10.)

43. The Film's equity patiners, including Doe, shm·e in the profits and losses of the Film. (Leccese Decl. ~ 23; Ex. 1 § 11.)

RESPONSE: Disputed. Proskauer partners do not enjoy true profit shm·ing. (Id. ~ 39.) Proskauer patiners do not have any fixed ownership stake in the Film or any fixed share of

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the Firm’s profits or losses. (Id.) Instead, the Executive Committee wields complete discretion and control over the pay assigned to Proskauer partners and any losses charged to them. (Id.) The Executive Committee unilaterally sets and exclusively controls partner pay. (Id.) The Executive Committee engages in a process of setting partner pay that is akin to the process the Executive Committee uses to assign pay and performance bonuses to senior staff, senior counsel, and non-equity partners. (Id. ¶ 40.) Proskauer’s Executive Committee changes partner pay from year to year at its discretion – purportedly after the completion of a performance review process. (Id.) Plaintiff seeks discovery to confirm that Proskauer partners do not “share” profits or losses and instead the Executive Committee unilaterally establishes partner pay from year to year, purportedly in connection with annual performance reviews. (Sanford Decl. ¶ 11.)

44. The Firm’s equity partners also contribute capital to the Firm annually in an amount equal to 7% of their share of the Firm’s profits for the year, subject to certain limitations. (Leccese Decl. ¶ 23; Ex. 1 § 12(a).)

RESPONSE: Disputed. The Executive Committee dictates the capital contribution for equity partners who join the Firm as “contract partners.” (Plaintiff Decl. ¶ 46.) Plaintiff seeks discovery concerning individual arrangements that the Executive Committee has entered into with partners concerning capital contribution levels. (Sanford Decl. ¶ 11.)

45. Equity partners are entitled to a return on their capital at a rate fixed by the Executive Committee. (Leccese Decl. ¶ 23; Ex. 1 § 12(b).)

RESPONSE: Undisputed that partners are entitled to a return on their capital at a rate or amount fixed by the Executive Committee. The Executive Committee exercises complete control over the rate of return on partner capital accounts. (Plaintiff Decl. ¶ 46.)

46. Employees of the Firm do not make capital contributions and are not charged with any portion of the Firm’s losses. (Leccese Decl. ¶ 23.)

RESPONSE: Disputed. Partner employees make capital contributions, as directed by the Executive Committee or as set forth in the Partnership Agreement. (Plaintiff Decl. ¶ 46; Leccese Decl. Ex. 1 § 12.) Under the Partnership Agreement, the Executive Committee wields control over any losses charged to partner employees. (Leccese Decl. Ex. 1 § 11.)

47. The Partnership Agreement requires that “[t]he profits of the Firm each year shall be allocated among the partners by the Executive Committee,” and that “[i]f the Firm shall incur net losses, such net losses shall be chargeable to the partners in such a manner as is determined by the Executive Committee....” (Leccese Decl. ¶ 24; Ex. 1 § 11.)

RESPONSE: Undisputed that, under the Partnership Agreement, the Executive Committee exercises complete control over the pay assigned to Proskauer partners and any losses charged to them. (Leccese Decl. Ex. 1 § 11.) Proskauer partners do not enjoy true profit sharing. Proskauer partners do not have any fixed ownership stake in the Firm or any fixed share of the Firm’s profits or losses. (Plaintiff Decl. ¶ 39.) The Executive Committee unilaterally sets and exclusively controls partner pay. (Id.) The Executive Committee engages in a process of setting partner pay that is akin to the process the


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Executive Committee uses to assign pay and performance bonuses to senior staff, senior counsel, and non-equity partners. (Id. ¶ 40.) Proskauer’s Executive Committee changes partner pay from year to year at its discretion – purportedly after the completion of a performance review process. (Id.) Plaintiff seeks discovery to confirm that Proskauer partners do not “share” profits or losses and instead the Executive Committee unilaterally establishes partner pay from year to year, purportedly in connection with annual performance reviews. (Sanford Decl. ¶ 11.)

48. Proskauer does not have “points” or “shares” or any metrics that “entitle” a partner to any particular level of allocation in a given year. (Leccese Decl. ¶ 25.)

RESPONSE: Undisputed. Proskauer partners do not have any fixed ownership stake in the Firm or any fixed share of the Firm’s profits or losses. (Plaintiff Decl. ¶ 39.) See also

Response to No. 43. Instead of the partners enjoying true profit sharing, the Executive Committee engages in a process of setting partner pay that is akin to the process the Executive Committee uses to assign pay and performance bonuses to senior staff, senior counsel, and non-equity partners. (Id. ¶¶ 39, 40.) Plaintiff seeks discovery to confirm that Proskauer partners do not “share” profits or losses and instead the Executive Committee unilaterally establishes partner pay from year to year, purportedly in connection with annual performance reviews. (Sanford Decl. ¶ 11.)

49. Rather, the Executive Committee annually undertakes a year-end review of each partner’s performance on a host of quantitative and qualitative factors related to both short- term and long-term contributions. (Id.)

RESPONSE: Disputed, except undisputed that Proskauer’s Executive Committee purportedly evaluates partner performance in setting partner pay and does not base its compensation decisions on any ownership interests in the Firm. When setting Plaintiff’s pay, however, the Executive Committee did not engage in an objective evaluation of partner performance or weigh the entirety of partner contributions; rather, the Executive Committee wielded its authority in a discriminatory and retaliatory manner. (Plaintiff Decl. ¶ 45.) Proskauer has paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Firm matched or exceeded theirs. (Id.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.)

50. In conducting its annual allocation process, the Executive Committee takes into account the myriad ways in which partners contribute to the Firm’s success. (Leccese Decl. ¶ 26.)

RESPONSE: Disputed, except undisputed that Proskauer’s Executive Committee sets partner pay purportedly in connection with an evaluation of partner performance rather than based on any ownership interests in the Firm. When setting Plaintiff’s pay, however, the Executive Committee did not engage in an objective evaluation of partner performance or weigh the entirety of partner contributions; rather, the Executive Committee wielded its authority in a discriminatory and retaliatory manner. (Plaintiff Decl. ¶ 45.) Proskauer has paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Firm matched or exceeded theirs. (Id.)


Plaintiff seeks discove1y to establish the actual basis for the Executive Committee's compensation decisions. (Sanford Decl. ~ 11.)

51. The Executive Committee sends an annual memorandum to all equity partners addressing the allocation of profits for the preceding fiscal year. (Leccese Decl. ~ 27; Ex. 2, Ex. 3, Ex. 4, Ex. 5.)

RESPONSE: Undisputed that the Executive Committee sends an annual memorandum to equity prutners purp01tedly addressing the allocation of profits for the preceding fiscal yeru·. The memoranda, however, do not provide a complete or accurate explanation of the Executive Committee's compensation decisions. (Plaintiff Decl. ~ 43.) Further, the Executive Committee does not provide paliners with an explanation for their specific compensation levels; each prutner simply receives a one-sentence memorandum "announc[ing]" the compensation set by the Executive Committee for the prior fiscal year. (Id. ~ 42.) Plaintiff seeks discove1y to establish the actual basis for the Executive Committee's compensation decisions. (Sanford Decl. ~ 11.)

52. Each year Doe was a partner, the Executive Committee emphasized in its annual memorandum (which was sent to Doe and all other equity pa1tners) that in detennining allocations it "did not make any decisions- up or down- based on a single year' s perf01mance" (Ex. 2 at 2, Ex. 3 at 4) and that it did not base allocations on "the vagaries of a single yeru·" (Ex. 4 at 9, Ex. 5 at 7). (Leccese Decl. ~ 28.)

RESPONSE: Undisputed that this is a pa1tial quote from the Executive Committee 's annual memoranda to · . The Executive Committee's memoranda further state .

Decl. Ex. 4 at 9, Ex. 5 at 7.) The Executive Committee's memoranda, however, do not provide a complete or accurate explanation of the Executive Committee's compensation decisions . (Plaintiff Decl. ~ 43 .) Plaintiff seeks discovery to establish the actual basis for the Executive Committee' s compensation decisions. (Sanford Decl. ~ 11.)

53. Rather, the Executive Committee made cleru· that it "rigorously examined three-yeru· (and longer) averages and the totality of each prutner's long te1m contributions" (Ex. 2 at 2, Ex. 3 at 4) and that it made allocation decisions "based on the totality ofthat pattner's contribution over a period ofyeru·s" (Ex. 4. at 9, Ex. 5 at 7). (Leccese Decl. ~ 28.)

RESPONSE: Undisputed that this is a pattial quote from the Executive Committee's annual memoranda to pru·tners. The memoranda, however, do not provide a complete or accurate explanation of the Executive Committee's compensation decisions. (Plaintiff Decl. ~ 43.) When setting Plaintiffs pay, the Executive Committee did not engage in an objective evaluation of pa1tner perf01mance or weigh the entirety of pru·tner contributions; rather, the Executive Committee wielded its authority in a discriminatmy and retaliatory matmer. (Id. ~ 45.) Proskauer has paid numerous male prutners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Fum matched or exceeded then·s. (Id.) Plaintiff seeks discovery to establish the actual

14


15

basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.) See

also Response to No. 54.

54. In other words, partner allocations are not tied to one year’s financial performance, but take into account the totality of the partner’s contributions over several years. (Id.)

RESPONSE: Disputed. When setting Plaintiff’s pay, the Executive Committee did not engage in an objective evaluation of partner performance or weigh the entirety of partner contributions; rather, the Executive Committee wielded its authority in a discriminatory and retaliatory manner. (Plaintiff Decl. ¶ 45.) Proskauer has paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Firm matched or exceeded theirs. (Id.) Furthermore, the Executive Committee tied Plaintiff’s initial compensation to her billings during her first (partial) year at the Firm. (Leccese Decl. Ex. 10.) Plaintiff seeks discovery regarding the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.) 55. Similarly, the Executive Committee has advised the Firm’s equity partners that “no

metric should be viewed as dispositive,” and “each has its limitations.” (Leccese Decl. ¶ 29; Ex. 2 at 4, Ex. 3 at 5.)

RESPONSE: Undisputed that this is a partial quote from the Executive Committee’s annual memoranda to “equity partners.” The Executive Committee memoranda, however, do not provide a complete or accurate explanation of the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 43.) In discussions with Executive Committee members, Office Heads, and Department Chairs, Plaintiff was informed that the Executive Committee gives predominant weight to partners’ client originations when determining partner pay. (Id.) Indeed, for her first year at the firm, Plaintiff was compensated based on that metric. (Leccese Decl. Ex. 10.) See also Response to No. 53. Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.)

56. It is the Executive Committee’s role to “carefully assess all metric and non-metric information.” (Leccese Decl. ¶ 29; Ex. 2 at 4.)

RESPONSE: Undisputed that this contains language quoted from one of the Executive Committee’s memoranda, but disputed that this accurately reflects how the Executive Committee sets partner pay. When setting Plaintiff’s pay, the Executive Committee did not engage in an objective evaluation of partner performance or weigh the entirety of partner contributions; rather, the Executive Committee wielded its authority in a discriminatory and retaliatory manner. (Plaintiff Decl. ¶ 45.) Proskauer has paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Firm matched or exceeded theirs. (Id.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.)

57. In explaining to partners the review it undertakes each year, the Committee has stressed “the laborious and nuanced process we go through in attempting to understand more fully


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the entirety of each partner's contributions to our collective well-being, the fairness of relative placement and the importance of all the factors not reflected on [the allocation] schedule, including the non-metric factors set forth in the statement of Our Fundamental Partnership Values.” (Leccese Decl. ¶ 30; Ex. 2 at 5, Ex. 3 at 6, Ex. 4 at 11, Ex. 5 at 9.)

RESPONSE: Undisputed that this language is a quote from memoranda that the Executive Committee distributes. Plaintiff disputes, however, that the quoted language provides a complete or accurate explanation of the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 43.) In discussions with Executive Committee members, Office Heads, and Department Chairs, Plaintiff was informed that the Executive Committee gives predominant weight to partners’ client originations when determining partner pay. (Id.) When setting Plaintiff’s pay, however, the Executive Committee did not engage in an objective evaluation of partner performance or weigh the entirety of partner contributions; rather, the Executive Committee wielded its authority in a discriminatory and retaliatory manner. (Plaintiff Decl. ¶ 45.) Proskauer has paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Firm matched or exceeded theirs. (Id.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.)

58. Those values include, among other things, acting as a business owner and fiduciary, practicing at the highest level of quality and integrity, abiding by ethical and legal standards, operating as a consummate team player, adhering to sound practice management, sharing credit with others and ensuring that the Firm prospers for future generations. (Leccese Decl. ¶ 31.)

RESPONSE: Undisputed that memoranda that the Executive Committee sends partners discuss these purported values. Plaintiff disputes, however, that the Executive Committee consistently considers or weighs these factors when deciding on partner pay. (Plaintiff Decl. ¶ 44.) Based on Plaintiff’s observations, most of the Firm’s most highly compensated males do not embrace or exemplify many of these purported values. (Id.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.)

59. The Firm’s Fundamental Partnership Values are communicated to the Firm’s equity partners each year in a pre-allocation memorandum. (Leccese Decl. ¶ 31; Ex. 6.)

RESPONSE: Undisputed that the Executive Committee disseminates a memorandum called “Our Fundamental Partnership Values.” However, Plaintiff disputes that the memorandum accurately captures the Executive Committee’s actual values or the standards it uses in setting partner pay. (Plaintiff Decl. ¶ 44.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.)

60. As the Executive Committee emphatically repeated each year Doe was a partner:

If metrics were all that counted we could simply ask a member of the finance staff to multiply one or more of the metric columns by a percentage. The allocation process would


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take only hours but would invariably lead to a ruinous focus on limited, and often inadequate, measures of contribution…. [I]t is a disservice to the process, when partners . . . form adverse judgments about the allocations made to others solely by comparing the metrics.

(Leccese Decl. ¶ 32; Ex. 2 at 5, Ex. 3 at 6-7, Ex. 4 at 11, Ex. 5 at 9.)

RESPONSE: Undisputed that this language is a quote from memoranda that the Executive Committee distributed. The memoranda, however, do not provide a complete or accurate explanation of the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 43.) In discussions with Executive Committee members, Office Heads, and Department Chairs, Plaintiff was informed that the Executive Committee gives predominant weight to partners’ client originations when determining partner pay. (Id.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.)

61. The annual allocation process begins each year with the distribution of the pre-allocation memorandum to all partners in early to mid-October. (Leccese Decl. ¶ 33, Ex. 7, Ex. 8, Ex. 9.)

RESPONSE: Disputed. Plaintiff has never been a member of the Executive Committee and lacks information about when the Committee begins its process of setting partner pay. (Plaintiff Decl. ¶ 50.) Plaintiff seeks discovery to establish the Executive Committee’s process for setting partner pay. (Sanford Decl. ¶ 11.)

62. The Firm’s fiscal year runs from November 1 to October 31. (Leccese Decl. ¶ 33, n.1; Ex. 1 § 10.)


63. In the pre-allocation memorandum, the Executive Committee invites partners to submit memoranda outlining their contributions to the Firm and the contributions made by their colleagues. (Leccese Decl. ¶ 33.)

RESPONSE: Disputed as to the characterization that the Executive Committee “invites” partners to submit self-evaluation memoranda. The Executive Committee directs partners to submit year-end memoranda and sets strict page limits and deadlines for their submission. (Plaintiff Decl. ¶ 40.) The Executive Committee engages in a process of setting partner pay that is akin to the process the Executive Committee uses to assign pay and performance bonuses to senior staff, senior counsel, and non-equity partners. (Id.) Plaintiff’s experience indicates that partner submissions do not meaningfully influence the Executive Committee’s compensation decisions. (Id.)

64. As the Executive Committee has explained, partner memos “provide valuable information [to the Committee] on a variety of economic and non-economic matters that cannot be measured solely by the year-end metrics available to us.” (Leccese Decl. ¶ 34; Ex. 7 at 1, Ex. 8 at 1, Ex. 9 at 1.)


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RESPONSE: Undisputed that this is a quote from memoranda that the Executive Committee disseminates, but disputed that the Executive Committee values or is meaningfully influenced by partners’ self-evaluation memoranda. Plaintiff’s experience indicates that partner submissions do not meaningfully influence the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 40.)

65. The annual memoranda prepared by partners are sent not only to the Executive Committee, but also to the partner’s Department Chairs and office heads for review and discussion. (Leccese Decl. ¶ 35.)

RESPONSE: Undisputed. The Executive Committee also requires Department Chairs and office heads – whom the Executive Committee hand picks – to partners’ performance and to provide their evaluations of partners’ performance to the Executive Committee in connection with the Executive Committee’s setting of partner pay. (Plaintiff Decl. ¶ 41.) Plaintiff seeks discovery to establish the influence of Department Chairs and office heads over partner pay. (Sanford Decl. ¶ 11.)

66. Although the Department Chairs and office heads do not set allocations for the Firm’s partners, they are available to meet with each partner to review his/her memorandum and discuss any questions, issues, concerns or other information that the partner may wish to raise in advance of the Firm’s annual allocation decisions, and Department chairs and office heads provide input to the Executive Committee for its consideration with respect to those decisions. (Id.)

RESPONSE: Undisputed that Department Chairs meet with partners about their memoranda and provide input to the Executive Committee, but Plaintiff disputes the misleading implication that partners have the opportunity to influence the Executive Committee’s compensation decisions. The Executive Committee also requires Department Chairs and office heads – whom the Executive Committee hand picks – to

partners’ performance and to provide their evaluations of partners’ performance to the Executive Committee in connection with the Executive Committee’s setting of partner pay. (Plaintiff Decl. ¶ 41.) Plaintiff’s experience indicates that these meetings do not meaningfully influence the Executive Committee’s compensation decisions. (Id. ¶ 40.) Plaintiff seeks discovery to establish the influence of Department Chairs and office heads over partner pay. (Sanford Decl. ¶ 11.)

67. After partner memos are submitted to the Executive Committee for consideration, members of the Executive Committee make themselves available to meet with any partner who wishes to discuss his/her contributions, as well as the contributions of other partners. (Leccese Decl. ¶ 36.)

RESPONSE: Undisputed that Executive Committee members are available to meet with partners, but Plaintiff disputes the misleading implication that partners have the opportunity to influence the Executive Committee’s compensation decisions. Plaintiff’s experience indicates that these meetings do not meaningfully influence the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 40.) The Executive Committee also does not disclose its evaluations of partners’ performance or the evaluations of partners’ performance it receives from Department Chairs or Office Heads. (Id. ¶ 42.)


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68. Following these meetings between members of the Executive Committee and any partner who wishes to discuss his/her contributions, as well as the contributions of other partners, and after the Executive Committee has considered each partner’s contributions to the Firm, the Committee makes final allocation decisions and communicates those decisions to the partners in December of each year. (Id.)

RESPONSE: Undisputed that the Executive Committee makes final decisions on partner pay and communicates those decisions, after the Executive Committee has made them, to partners each December. Plaintiff, however, disputes the misleading implication that partners have the opportunity to influence the Executive Committee’s compensation decisions or that the Executive Committee engages in an objective evaluation of partner contributions. Based on Plaintiff’s experience, partner submissions and subsequent meetings that partners may hold with the Executive Committee do not meaningfully influence the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 40.) See

also Response to No. 53.

69. In accordance with Section 22 of the Partnership Agreement, such allocation decisions – which are entrusted to the Executive Committee by the partners – are “final and binding for purposes of [the Partnership] Agreement and not subject to review or modification in any arbitration or judicial proceeding.” (Leccese Decl. ¶ 37; Ex. 1 § 22.)

RESPONSE: Undisputed that this is a partial quote from Paragraph 22 of the Firm’s Partnership Agreement. Plaintiff, however, disputes that this language, which purports to exempt the Executive Committee’s decisions from judicial or arbitral review or modification, is valid or enforceable. Plaintiff further disputes that the partners “entrust” compensation decisions to the Executive Committee. Proskauer partners, including Plaintiff, have no alternative but to submit to the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 14.) Moreover, this statement has no bearing on Defendant’s summary judgment and should be stricken from Defendant’s Statement of Material Facts as irrelevant and improper.

70. Each of the Firm’s equity partners receives a report each December specifying the allocation paid to each partner and reflecting various metrics applicable to each partner – including cash collected per hour worked by the partner, revenue from clients originated by the partner, revenue from clients for which the partner had relationship responsibility, revenue from client matters for which the partner had responsibility, revenues from matters on which the partner worked, the realization rates associated with such revenue, and hours billed. (Leccese Decl. ¶ 38.)

RESPONSE: Undisputed that equity partners receive a summary sheet after the close of the fiscal year that includes limited categories of compensation and performance information about other equity partners. Notably, this information is provided only after the Executive Committee has made its final partner pay decisions. (Plaintiff Decl. ¶ 42.) Proskauer does not afford partners any opportunity for internal appeal of the Executive Committee’s final compensation decisions after partners are provided with access to this information. (Id.) Indeed, Proskauer has taken the position that its pay decisions are final, binding, and unreviewable. (See Leccese Decl. ¶ 37.) However, Plaintiff disputes any implication that Proskauer partners have insight into the basis for the Executive


20

Committee’s pay decisions. The Executive Committee does not provide an explanation for the specific compensation levels assigned to partners. (Plaintiff Decl. ¶ 42.) The Executive Committee also does not disclose its evaluations of partners’ performance or the evaluations of partners’ performance it receives from Department Chairs or Office Heads. (Id.)

71. The report provides data for each of those metrics for the immediately preceding year and as an average for the three preceding years. (Id.)

RESPONSE: Undisputed that equity partners receive a summary sheet that contains certain one-year and three-year metrics after the Executive Committee has made final compensation decisions. Notably, this information is provided only after the Executive Committee has made its final partner pay decisions. (Plaintiff Decl. ¶ 42.) Proskauer does not afford partners any opportunity for internal appeal of the Executive Committee’s final compensation decisions after partners are provided with access to this information. (Id.) Indeed, Proskauer has taken the position that its pay decisions are final, binding, and unreviewable. (See Leccese Decl. ¶ 37.)

72. In addition, the individual partner memoranda prepared by each partner are available for review by all partners after the allocation process is complete. (Id.)

RESPONSE: Disputed. The Executive Committee places numerous limitations on the availability of individual partner memoranda, including requiring in-person review and barring copying or electronic distribution. (Leccese Decl. Ex. 2 at 7; Leccese Decl. Ex. 3 at 8.) Further, Plaintiff disputes any implication that Proskauer partners have insight into the basis for the Executive Committee’s pay decisions. The Executive Committee does not provide an explanation for the specific compensation levels assigned to partners. (Id.) The Executive Committee also does not disclose its evaluations of partners’ performance or the evaluations of partners’ performance it receives from Department Chairs or Office Heads. (Id.)

73. Realization, as measured at Proskauer, includes two different metrics – one that approximates the fees collected as a percentage of the fees accrued at specified rates on client matters, and a second that reflects a “hypothetical” realization that approximates the fees collected as a percentage of the fees that would have accrued at rates attorneys should reasonably charge for their services based on their years of experience. (Id. ¶ 39.)

RESPONSE: Disputed. Plaintiff was informed that the “hypothetical” realization rate is an experimental variable that is not factored into partner pay. (Plaintiff Decl. ¶ 42 n.4.)

74. Equity partners are responsible for paying their own individual taxes on allocated Firm income. (Id. ¶ 40.)

RESPONSE: Disputed. For certain jurisdictions, the Firm files composite returns and pays applicable taxes for electing partners, and the amounts paid by the Firm on behalf of the electing partners are deducted from the partners’ pay. (Plaintiff Decl. ¶ 48.)


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75. The allocations paid to equity partners are reported on a Schedule K-1, which is the IRS Schedule used to report profits and losses of self-employed business owners of a partnership. (Id.)

RESPONSE: Undisputed that the Firm issued Plaintiff a Form K-1 reflecting compensation paid to her. Plaintiff has not been a member of the Executive Committee and lacks control over the Firm’s tax reporting of partner pay. (Plaintiff Decl. ¶ 48.) Further, Plaintiff lacks information regarding the tax reporting of all compensation paid to all partners, as discovery has not taken place yet. (Id. ¶ 50.)

76. Among other things, the Firm’s partners have broad latitude in bringing business into the Firm, subject to the Firm’s conflicts procedures, billing and collection guidelines, risk management and similar policies, all of which are set by the Executive Committee pursuant to the express grant of authority in the Partnership Agreement. (Id.)

RESPONSE: Disputed. Proskauer tightly controls the ability of partners to pitch business on behalf of the Firm, and the Firm has restricted Plaintiff’s ability to pitch and develop business. (Plaintiff Decl. ¶ 37.) Proskauer’s Chairman rebuffed Plaintiff’s various marketing and business development initiatives, stating that the areas Plaintiff’s planned to develop were already “owned” by other (almost exclusively male) partners. (Id.) Proskauer’s Chairman also threatened to “fire” one of the clients Plaintiff represented. (Id. ¶ 35.) The Executive Committee and its designated Department Chairs select predominantly male partners to manage and participate in the work of Firm clients, and to participate in the Firm’s pitches, marketing activities, and business development initiatives. (Id. ¶ 37.) Plaintiff seeks discovery regarding the full scope of policies and directives that the Executive Committee imposes on partners. (Sanford Decl. ¶ 6.)

77. The partnership has vested in the Executive Committee the authority to “determin[e] the fees, profits, expenses, and accounting practices of the Firm”, as well as the authority to make “determinations regarding acceptance of client representations and resolution of conflicts arising in the course of such representations.” (Leccese Decl. ¶ 41, n.2; Ex. 1 § 5(c).)

RESPONSE: Undisputed that the quoted language is excerpted from Paragraph 5(c) of the Firm’s Partnership Agreement. Plaintiff, however, disputes the misleading suggestion that the Firm’s partners played any role in “vest[ing]” authority to the Executive Committee. Proskauer partners, including Plaintiff, have no alternative but to submit to the oversight and control of the Executive Committee. (Plaintiff Decl. ¶ 14.)

78. Subject to the Executive Committee’s policy determinations, the Firm’s equity partners, including Doe, have discretion over the manner in which they provide services to the Firm’s clients and manage their work, and they are not subject to oversight or supervision by the Executive Committee. (Leccese Decl. ¶ 42.)

RESPONSE: Disputed, except that Plaintiff admits that Proskauer partners are “subject to the Executive Committee’s policy determinations.” Proskauer partners are supervised by, and required to report to, the Executive Committee and the Department Chairs selected by the Executive Committee. (Plaintiff Decl. ¶ 33.) The Executive Committee insists that


(Leccese Decl. Ex. 5 at 3.) Policies Execut1ve Cormmttee Proskauer partners service clients

and manage cases. (PlaintiffDecl. ~ 28.) The Executive Committee requires partners to comply with the same Attomey Manual as the Finn's associates, with additional regulations set forth in a Pmtner Manual, and with other Fum policies; through these employee manuals and policies, the Executive Committee dictates picaytme details of pm1ner work, includll1g the content of letters and how documents must be saved. (Id. ~ 27.) Proskauer partners are required to submit daily time records reflecting then· work and detailed records conceming then· billings and collections; these records are monitored and scmtinized by the Finn's Executive Committee and Depmtment Chau·s. (!d. ~ 33.) Further, Proskauer regulates the substance of partner work. (!d. ~ 28.) Pmtners have been told that any work they perf01m on cei1ain subject matters must follow specific templates developed by the Fum. (!d.) Proskauer also lllnits the types of clients whom pminers are able to represent, lllnits the positions partners can asse11 on behalf of clients, and has dictated that cet1ain claims or positions cannot be asserted behalf of clients. (!d.) The Executive Cormnittee has interjected itself into pminer management of client matters by making unilateral decisions regm·ding billings and collections. (!d.~ 35.) On one occasion, Proskauer's Chaitman actually threatened to "fire" one of Plaintiffs clients. (Jd.) Fmiher, Department Co-Chau·s (whom the Executive Committee hand selects) have insetted themselves into and interfered with Plaintiffs work and management of client matters. (!d.) For instance, Plaintiff was told by her Depa11ment Co-Chan· to provide specific advice to a client (which she disagreed with) regarding a complex legal issue. (!d.) Plaintiff seeks discovety regarding the full scope of the Executive Committee's supervision ofpminers. (Sanford Decl. ~~ 7, 8.)

79. In the case of litigators like Doe, for example, patiners routinely advise clients on litigation avoidance, confer with clients on litigation strategy and file com1 documents, all without any oversight by the Executive Committee. (Id.)

RESPONSE: Disputed. Proskauer pminers are supervised by, and required to rep011 to, the Executive Committee and its designees, the Depm1ment Chairs whom the Executive Committee hand selects. (Plaintiff Decl. ~ 33.) Proskauer partners m·e required to submit daily time records reflecting then· work and detailed records conceming then· billi11gs and collections; these records are monitored and scmtinized by the Fum's Executive Committee and Depmiment Chau·s. (!d.) Plaintiff is requu·ed to provide monthly rep01is - both written and oral - to her Depru1ment Co-Chairs detailing the status of her and her team's cases. (!d. ~ 34.) For instance, Plaintiff was told by her Depmiment Co-Chair to provide specific advice to a client (which she disagreed with) regarding a complex legal issue. (!d. ~ 35.) See also Response to No. 78. Plaintiff seeks discovety regardll1g the full scope of the Executive Committee' s supe1vision of partners. (Sanford Decl. ~~ 7, 8.)

80. The Fum's associates or other Fum employees are subject to supetvision by the Fum, includll1g by the pminers (such as Doe) who oversee client matters. (Leccese Decl. ~ 43.)

RESPONSE: Undisputed. Pruiners such as Plaintiff are subject to extensive supe1vision by the Executive Committee, then· Depmiment Chau·s, and other partners. (PlaintiffDecl. ~~ 33-36.) See also Responses to Nos. 78 and 79.

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81. The Firm’s partners also have wide-ranging access to the Firm’s financial information. (Leccese Decl. ¶ 44.)

RESPONSE: Disputed. Partners who are not on the Executive Committee lack access to much of the Firm’s financial information. (Plaintiff Decl. ¶¶ 19, 49.) The Executive Committee provides partners with only limited disclosures regarding the Firm’s finances comprised of brief, summary information regarding Firm financial results. (Id. ¶¶ 19, 49.) Plaintiff seeks discovery concerning partners’ lack of access to complete information regarding the Firm’s finances. (Sanford Decl. ¶ 9.)

82. Pursuant to Section 5(e) of the Partnership Agreement, partners are entitled to financial information and other materials to be discussed at monthly partner meetings (Ex. 1 § 5(e)); and detailed financial data – including revenue, billings, collections, hours and other metrics – is presented to all partners during monthly partnership meetings. (Leccese Decl. ¶ 44.)

RESPONSE: Disputed. The Executive Committee provides partners with only limited disclosures regarding the Firm’s finances, comprised of brief, summary information regarding Firm financial results. (Id. ¶¶ 19, 49.) The Executive Committee’s reports to partners are not detailed and do not provide partners with insight into many aspects of the Firm’s finances, operations, management, personnel, and administration. (Id. ¶ 19.) Plaintiff seeks discovery concerning partners’ lack of access to complete information regarding the Firm’s finances. (Sanford Decl. ¶ 9.)

83. Access to Firm financial data is available to equity partners through the Partner Portal on the Firm’s intranet. (Id.)

RESPONSE: Disputed. Through the Partner Portal, Plaintiff is not provided with comprehensive Firm financial information; beyond her own performance information, she can access only the limited, summary information shared at partnership meetings. (Plaintiff Decl. ¶ 42 n.5.) See also Response to No. 82. Plaintiff seeks discovery concerning partners’ lack of access to complete information regarding the Firm’s finances. (Sanford Decl. ¶ 9.)

84. All equity partners receive, at the time of profit allocations, annual and 3-year average data on partner allocations, cash collected per hour worked, four categories of revenue credit, and realization rates for each partner of the Firm. (Leccese Decl. ¶ 45.)

RESPONSE: Disputed. It is after the distribution of pay memoranda that the Executive Committee provides partners with a summary sheet that includes these limited categories of compensation and performance information about other partners. (Plaintiff Decl. ¶ 42.) The summary sheets do not include information for non-equity partners. (Id.) Further, Plaintiff disputes any implication that Proskauer partners have insight into the basis for the Executive Committee’s pay decisions. The Executive Committee does not provide an explanation for the specific compensation levels assigned to partners. (Plaintiff Decl. ¶ 42.) The Executive Committee also does not disclose its evaluations of partners’ performance or the evaluations of partners’ performance it receives from Department Chairs or Office Heads. (Id.)


85. In addition to having the right to cast three votes in patinership votes, equity pa1iners also have extensive access to individual allocations and other fmancial metrics on their fellow patiners. (!d.)

RESPONSE: Disputed. See Response to No. 14. Further, the infmmation that Proskauer partners receive is not "extensive" and is provided only after-the-fact, not in real time. Specifically, the Executive Committee merely provides patiners with a summary sheet after the close of the fiscal yeru· that includes limited categories of compensation and perfmmance infmmation about other equity pminers. (Plaintiff Decl. ~ 42.) Moreover, this infmmation is provided only after the Executive Committee has made its final partner pay decisions. (!d.) Fmther, the Executive Committee does not afford pmtners any oppmtunity for intemal appeal of the Executive Committee' s final compensation decisions after pminers ru·e provided with access to this infmmation. (!d.)

86. Income pminers and other employees of the Fi1m ru·e not given access to this financial infmmation about equity pa1iners. (!d.)

RESPONSE: Disputed. There are non-pminer employees of the Fum who have access to financial infmmation conceming equity pminers. (Plaintiff Dec!.~ 42 n.4.)

8 7. Doe joined Proskauer as an equity pminer in the 2013, and has been a partner for the past fom years m

.I..JY'~'"''"'"' Decl. ~ 46.)

RESPONSE: Undisputed. Notwithstandii1g her title as "equity partner," the Executive Committee has exercised complete control over the te1ms and conditions of Plaintiff's employment, including controlling her hiring, controlling her compensation, and, according to the position taken in the Fum's submissions to this Comt, claiming the right to unilaterally te1minate her employment (Plaintiff Decl. ~ 14.) Plaintiff seeks discove1y to confnm the Executive Committee's control over the tenus and conditions of Plaintiff's employment. (See generally Sanford Decl.)

88. Doe caine to the Fum after as a patiner


- a paitner at- and (!d.)

89. Like all prospective pminers, Doe's admission to the pminership was subject to approval by a vote of the pmtners. (!d.)

RESPONSE: Disputed. Proskauer's Chairman extended to Plaintiff a written offer of pa1inership, which provided that she would become a Proskauer paiiner merely by signing the offer. (Plaintiff Dec!.~ 2; Leccese Decl. Ex. 10.) It was only after Plaintiff executed and retmned her binding agreement with Proskauer that the Executive Committee held a vote of the full partnership. (Plaintiff Decl. ~ 2.) It was made clear to Plaintiff that any subsequent pa1inership vote would be a mere fmmality. (!d. ~ 1.) Indeed, the favorable partnership vote was a pro forma exercise that merely confmned the Executive Committee 's decision to hll·e her. (!d. ~ 2.)

24


25

90. After a presentation to the equity partners at a partnership meeting, the equity partners voted to admit Doe as an equity partner. (Id.)

RESPONSE: Undisputed that Plaintiff was presented to the equity partners at a partnership meeting and received a favorable vote. However, it was only after Plaintiff executed and returned her binding agreement with Proskauer that the Executive Committee held a vote of the full partnership. (Plaintiff Decl. ¶ 2.) The favorable partnership vote was a pro

forma exercise that merely confirmed the Executive Committee’s decision to hire her. (Id.)

91. Upon joining the Firm, Doe agreed to the Partnership Agreement. (Id.)

RESPONSE: Disputed. Proskauer’s Executive Committee only had Plaintiff sign a side agreement with the Firm and never asked Plaintiff to sign the Partnership Agreement. (Plaintiff Decl. ¶ 3.) In its submission to the Court, the Firm now apparently claims this separate agreement authorizes it to unilaterally terminate Plaintiff without any vote of the full partnership (in contravention of the Partnership Agreement). (Leccese Decl. ¶ 47.)

92. When Doe joined the Firm, in addition to agreeing to the Partnership Agreement, she and the Firm agreed that while she would be a regular equity partner for all other purposes, her allocation would be guaranteed for 2013 and, subject to certain terms and conditions, her membership in the Firm could be terminated by the Executive Committee either for cause or not for cause. (Leccese Decl. ¶ 47; Ex. 10.)

RESPONSE: Disputed, except that Plaintiff acknowledges that Plaintiff signed a separate side agreement with the Firm. Plaintiff, however, disputes the Executive Committee’s characterization of its rights under the side agreement. (See Leccese Decl. Ex. 10.)

93. Since joining the Firm, Doe has received annual allocations from the Firm’s profits. (Leccese Decl. ¶ 48.)

RESPONSE: Undisputed that Plaintiff has received annual compensation. Plaintiff, however, disputes the misleading implication that Plaintiff shared in profits. Proskauer partners do not enjoy true profit sharing. (Id. ¶ 39.) Proskauer partners do not have any fixed ownership stake in the Firm or any fixed share of the Firm’s profits or losses. (Id.) Instead, the Executive Committee wields complete discretion and control over the compensation assigned to Proskauer partners. (Id.) The Executive Committee unilaterally sets and exclusively controls partner pay. (Id.) The Executive Committee engages in a process of setting partner pay that is akin to the process the Executive Committee uses to assign pay and performance bonuses to senior staff, senior counsel, and non-equity partners. (Id. ¶ 40.) Proskauer’s Executive Committee changes partner pay from year to year at its discretion – purportedly after the completion of a performance review process. (Id.) Plaintiff seeks discovery to confirm that Proskauer partners do not “share” profits or losses and instead the Executive Committee unilaterally establishes partner pay from year to year, purportedly in connection with annual performance reviews. (Sanford Decl. ¶ 11.)

94. For the balance of the Firm’s 2013 fiscal year (i.e., through October 31), Doe’s allocation was in accordance with the individual agreement she entered into with the Firm. (Id.)


Specifically, Doe received a pro rata p011ion of _. which was comprised of pro rata p01tious of~ and a ~signing bonus. (Id.)


95. For 2014, Doe 's profit allocation of 1 represented a l!iYo increase over the allocation she received for 2013. (Leccese Decl. ~ 49.)

(!d.)

RESPONSE: Disputed. Plaintiff's assigned compensation for 2014 constituted just a io1o increase over the prorated pay she received for fiscal year 2013. (Plaintiff Decl. ~ 45.) Moreover, Defendant's various statements about Plaintiff's actual compensation, including in relation to other pat1ners, pettain to the merits of her claim that she was discriminated and retaliated against, not whether she was an employee. Thus, they should be stricken from Defendant's Statement of Material Facts as immaterial and improper.

96. The average increase for full-year equity partners for 2014 was approximately only

RESPONSE: Plaintiff lacks inf01mation about the average increase in pay for full-time equity partners in 2014, as Plaintiff is not a member of Proskauer 's Executive Committee and discovety has not yet commenced. (Plaintiff Decl. ~ 50.) The Executive Committee does not disclose to the general partnership the annualized pay rates it assigns to pru1ners hired mid-year, and therefore Plaintiff cannot compute the rates of increase for these individuals when they became full-yeru· pat1ners. (Jd.) Fmther, Defendant's emphasis on the "average" increases for other prutners is misleading because Plaintiff's perf01mance far exceeded that of the "average" full-year equity pru1ner. (!d. ~ 45.)

97. For 2015, Doe' s allocation of-represented a i% increase over 2014.

RESPONSE: Disputed. Plaintiff's assigned compensation for 2015 constituted less than al% increase over her assigned compensation for 2014. (PlaintiffDecl. ~ 45.) Fmther, Proskauer paid numerous male pat1ners substantially more than Plaintiff even though her quantitative and qualitative contributions at the Film matched or exceeded theirs. (!d.)

98. i%. (Id.)

The average increase for full-yeru· equity pat1ners for 2015 was approximately only

RESPONSE: Plaintiff lacks iufonnation about the average increase in pay for full-time equity pru1ners in 2015, as Plaintiff is not a member of Proskauer' s Executive Committee and discovery has not yet commenced. (Plaintiff Decl. ~ 50.) The Executive Committee does not disclose to the general pat1nership the annualized pay rates it assigns to pat1ners hired mid-yeru·, and therefore Plaintiff cannot compute the rates of increase for these individuals when they became full-yeru· prutners. (Jd.) Fmther, Defendant's emphasis on the "average" increases for other pat1ners is misleading because Plaintiff's perf01mance fru· exceeded that of the "average" full-year equity pat1ner. (I d. ~ 45.)

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99. Doe was one of the six highest paid patiners in the Depattment for 2015, of whom three are male and three are female. (Id.)

RESPONSE: Undisputed. Plaintiff, however, disputes any misleading implication that she was appropriately compensated. Proskauer paid numerous male prutners substantially more than Plaintiff even though her quantitative and qualitative contributions at the Film matched or exceeded theirs. (PlaintiffDecl. ~ 45.) Further, the Executive Committee does not claim that it considers patiners' respective depatiments when setting pay. (See generally Leccese Decl.)

100. For 2016, Doe' s allocation was il1creased to~' ani% il1crease over 2015. (Leccese Decl. ~50.)

(I d.)

RESPONSE: Undisputed that Plaintiff's assigned compensation for 2016 constituted an 1% increase over her assigned compensation for 2015. However, Proskauer paid numerous male pattners substantially more than Plaintiff even though her quantitative and qualitative contributions at the Film matched or exceeded theirs. (PlaintiffDecl. ~ 45.)

101. The average increase for full-year equity pattners for 2016 was approxitnatelyi%.

RESPONSE: Plaintiff lacks infotmation about the average increase in pay for full-time equity pattners in 2016, as Plaintiff is not a member of Proskauer ' s Executive Committee and discovety has not yet commenced. (PlaintiffDecl. ~50.) The Executive Committee does not disclose to the general pattnership the annualized pay rates it assigns to pattners hired mid-year, and therefore Plaintiff cannot compute the rates of increase for these individuals when they became full-yeru· patiners. (Jd.) Further, Defendant' s emphasis on the "average" increases for other pruiners is misleading because Plaintiffs perfmmance fru· exceeded that of the "average" full-yeru· equity pattner. (Jd. ~ 45.)

102. Doe was the fifth highest paid partner in the 2016. (Id.)

Depatiment for

RESPONSE: Undisputed. Plaintiff, however, disputes any misleading implication that she was appropriately compensated. Proskauer paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions at the Film matched or exceeded theirs. (PlaintiffDecl. ~ 45.) Fmther, the Executive Committee does not claim that it considers patiners ' respective deprutments when setting pay. (Leccese Decl. Exs. 2-5.)

103. Doe routinely files comi documents and advises clients both pre- and during litigation without oversight by the Executive Committee or any of her other co-owners. (Leccese Decl. ~51.)

RESPONSE: Disputed. Proskauer prutners are supervised by, and requil·ed to repmi to, the Executive Committee and its designees, the Department Chail·s whom the Executive Committee hand selects. (PlaintiffDecl. ~ 33.) Proskauer pattners are required to submit daily time records reflecting theil· work and detailed records conceming their billings and

27


collections; these records are monitored and scm tinized by the Fi1m's Executive Collllllittee and Depruiment Chairs. (!d.) Plaintiff is required to provide monthly rep01ts - both written and oral - to her Depruiment Co-Chairs detailing the status of her and her team 's cases. (!d.~ 34.) Further, Depruiment Co-Chairs have inserted themselves into and interfered with Plaintiff's work and management of client matters. (!d. ~ 3 5.) For instance, Plaintiff was told by her Deprutment Co-Chair to provide specific advice to a client (which she disagreed with) regarding a complex legal issue. (!d.) Fmther, in a recent matter, Plaintiffs work (ru1d the work of several other equity prutners) was dictated, directed, reviewed, and supervised by other Fi1m pruiners. (!d. ~ 36.) Among other things, she was required to submit drafts of memoranda and other com1mmications for other prutners' review and revisions. (/d.) fu one instance, she was directed to provide legal advice with which she disagreed. (/d.) See also Response to No. 78.

104. Doe generates client relationships and perf01ms legal work for clients in her discretion subject to the general policies concerning conflicts, risk and billing established by the Fum's elected Executive Collllllittee for the collective benefit of the prutners and the Fum. (!d.)

RESPONSE: Disputed. The Executive Collllllittee does not just impose "general policies conceming conflicts, risk and billing." fustead, the Executive Committee establishes comprehensive to and has dictated that all

'"'""''"'~'"~'"''''"' for (PlaintiffDecl. ~ 26; Leccese Decl. Ex. 5 at 3 (emphasis

added).) The Executive Committee requu·es patt ners to comply with the same Attomey Manual as the Fi1m's associates, with additional regulations set f01th in a Pattner Manual, and with other Fum policies; through these employee manuals and policies, the Executive Collllllittee dictates picayune details of prutner work, including the content of letters and how documents must be saved. (!d.~ 27.) Additionally, Proskauer regulates the substance of prutner work, including dictating that ce1tain prutner work must fo llow specific templates developed by the Firm and limiting the types of clients whom prutners can represent and the positions and clauns prutners can asse1t on behalf of clients. (!d. ~ 28.) Proskauer also dictates the homs that who work fewer than - homs per year ru·e directed to to the Collllllittee. (!d. ~ 29; Leccese Ded. Exs. 7, 8, and 9.) See also Responses to Nos. 103 and. 105.

105. Doe sets her own priorities and schedule, dete1mining, for exrunple, whether and when she will spend her time pmsuing business from existing clients or prospective clients, and when, and even where, she will perf01m the legal work for which she is retained by those clients. (Leccese Decl. ~52.)

RESPONSE: Disputed. Proskauer tightly controls the ability of prutners to pitch business on behalf of the Firm, and the Fi1m has restricted Plaintiffs ability to pitch and develop business. (Plaintiff Dec!.~ 37.) The Executive Committee and its designated Depa1iment Chau·s select predominantly male partners to manage and participate in the work of Fum clients, and to pruticipate in the Fum's pitches, marketing activities, and business development initiatives. (!d.) Proskauer ' s Chainnan rebuffed Plaintiffs various mru·keting and business development initiatives, stating that the ru·eas Plaintiffs planned to develop were ah·eady "owned" by other (almost exclusively male) pattners who had ah'eady been

28


selected by the Executive Committee or its designees. (!d.) Further, the Film has the dominion to limit and dll·ect Plaintiffs work. For instance, since Plaintiff brought her complaints about discrimination to the Film's attention, she has not been asked to work on Film clients or to participate in Film pitches, she has had work diverted from her to other (male) partners with less experience and expe1iise, she has been removed from cases, she has been removed fi·om Film committees, and her relationships with clients and colleagues have been disrupted by the Firm, and her access to Proskauer' s document management system and database search tools have been restricted. (!d.~ 38.) Additionally, Proskauer's Executive Committee dictates the homs that pa1iners must work who work fewer than iii homs per year are directed to to the Executive Committee. (Id. ~ 29; Leccese Decl. Exs. 7, 8, and 9.)

106. The Film's associates and other staff are subject to ""T",.-"' who oversees client matters and serves as the head of the Film's - Group and co-head of the Film's (Leccese Decl. ~53.)

.,,.,.,,y,,.., that Plaintiff serves as the head of the Fi1m's I Group and co-head of the Film's

practice group supervises certain Film associates and However, pa1iners such as Plaintiff are also subject to extensive supervision by the Executive Committee, theil· Deprutment Chail·s, and other pruiners. (PlaintiffDecl. ~~ 33-36.) See also Responses to Nos. 78, 79, 103, 105.

107. Doe has never requested "leave" from the Film. (Leccese Decl. ~54.)

RESPONSE: Disputed. On vru·ious occasions, Plaintiff notified the Chailman ofthe Film or her Deprutment Co-Chail· that she needed to take leave because she was ill or because her child needed care, and they authorized her to take leave or to work a reduced schedule. (Plaintiff Dec!. ~ 30 .) For instance, in 2016, Plaintiff requested, and her Co-Chail· approved, a period ofprui-time work due to her medical condition. (Jd.) Time that she took off was recorded as sick leave in the Film' s time-keeping system. (Id.)

108. Like all equity prutners, she may come and go as she sees fit, provided that she meets her professional responsibilities to clients. (Id.)

RESPONSE: Disputed. Proskauer's Executive Committee dictates the homs that pa1tners must prutners who work fewer than .. homs per yeru· are directed to.__

to the Executive Committee. (PlaintiffDecl. ~ 29; Leccese Decl. Exs. 7, 8, and , many equity prutners work under the direction of other pruiners at the Fi1m

and have little control over theil· schedules, theil· travel, their substantive work, and theil· work location. (PlaintiffDecl. ~ 29.) See also Response to No. 107.

109. Doe has taken time away from the Fi1m for her health ru1d welfare without seeking permission from anyone. (Id.)

RESPONSE: Disputed. On various occasions, Plaintiff notified the Chailman of the Film or her Depa1tment Co-Chail· that she needed to take leave because she was ill or because

29


her child needed care, and they authorized her to take leave or to work a reduced schedule. (Plaintiff Decl. ~ 30.) For instance, in 2016, Plaintiff requested, and her Co-Chair approved, a period of part-time work due to her medical condition. (!d.) Time that she took off was recorded as sick leave in the Fum's time-keeping system. (!d.)

110. Throughout her tenure with the Fum, Doe's allocation of partnership profits has been reported on an IRS Schedule K-1 (used to report partner income), not a Fonn W-2 (used to report employee wages). (Leccese Decl. ~55.)

RESPONSE: Undisputed that the Fum repmied Plaintiff's compensation on a Fmm K-1. Plau1tiff has not been a member of the Executive Committee and lacks control over the Fum's tax repmting ofpru.iner pay. (PlaintiffDecl. ~ 48.)

111. Doe's K -1 's indicate that her residence is in

RESPONSE: Plaintiff disputes that this pru.·agraph is relevant to Defendant's sUIIllnru.y judgment motion. Accordingly, this pru.·agraph should be stricken from Defendant's Statement of Material Facts as immaterial and iinproper. See also Response to No. 75.

112. Doe has complete infmmation about other equity pru.iners' allocations, and access to comprehensive financial infonnation about the Fum's perfmmance and substantial infmmation regarding other equity pmtners' contributions. (!d. ~56.)

RESPONSE: Disputed. The Executive Committee did not disclose to pruiners the annualized rates it pays to partners whom it hu·es mid-year. (Plaintiff Dec!. ~50.) Fmther, the Firm's private agreements with incomillg pminers are not full disclosed to the full pru.tnership. (!d. ~ 23.) The Executive Cmmnittee provides pminers with only limited disclosures regarding the Fum's fmances, comprised of brief, smmnmy infmmation regarding Fum fmancial results. (!d. ~~ 19, 49.) The Executive Committee' s repmts to pattners m·e not detailed and do not provide pru.iners with insight into many aspects of the Fum' s fmances, operations, management, personnel, and admillistration. (!d. ~ 19.) Plaintiff seeks discovety conceming pminers' lack of access to complete infmmation regarding the Fum's finances. (Sanford Decl. ~ 9.) See also Response to No. 72, 82, 84, and 85.

113. The Fum' s income pminers and employees do not have access to the infmmation available to equity pminers about evety equity pru.iners' allocations. (!d.)

RESPONSE: Disputed. There m·e non-patiner employees of the Fum who have access to information conceming equity patiners' compensation. (PlaintiffDecl. ~ 42 n.4.)

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31

PLAINTIFF’S STATEMENT OF GENUINE ISSUES OF FACT

Pursuant to Local Civil Rule 7(h), Plaintiff hereby submits a list of material facts as to

which Plaintiff contends there exists a genuine issue necessary to be litigated in connection with

Defendant’s assertion that Plaintiff is not an “employee” under applicable laws.2 Plaintiff

maintains that these facts will be borne out in discovery in this action.

114. The Firm’s Executive Committee exercises complete control over the Firm’s finances, operations, management, personnel, and administration. (Plaintiff Decl. ¶ 14.)

115. The Firm’s Executive Committee exercises complete control over the terms and conditions of partner employment. (Plaintiff Decl. ¶ 14.)

116. The Firm’s Executive Committee has always been predominantly male. (Id. ¶ 10.)

117. The Firm’s Executive Committee is currently all male. (Id.)

118. The Firm’s Chairman has always been male. (Id.)

119. The Firm, through its Executive Committee, determines which individuals are to be made partner without first putting these decisions to a vote of all Firm partners. (Id. ¶¶ 2, 22.)

120. The Firm, through its Executive Committee, has extended offers of partnership without first notifying, consulting with, or obtaining a vote of the full partnership. (Plaintiff Decl. ¶¶ 2, 23.)

121. The Firm, through its Executive Committee, has terminated partners without first notifying, consulting with, or obtaining a vote of the full partnership. (Id. ¶ 24.)

122. The Firm, through its Executive Committee, has entered into side agreements with partners purportedly authorizing the Executive Committee to terminate partners without obtaining a vote of the full partnership. (Id. ¶ 4.)

123. The Firm made the decision to terminate Plaintiff’s employment. (Id. ¶ 25.)

124. The Firm made the decision to terminate Plaintiff because Plaintiff made internal complaints of discrimination and retaliation. (Id.)

125. On March 23, 2017, the Firm, through its counsel, communicated to Plaintiff that the Firm would terminate her. (Id.)

2 Discovery has not yet commenced. Plaintiff reserves the right to identify additional genuine issues after the conclusion of discovery.


32

126. The Firm’s Executive Committee did not notify, consult with, or obtain a vote for the full partnership before Plaintiff was told that she would be terminated. (Id.)

127. The Firm, through its Executive Committee, sets comprehensive rules and regulations regarding partners’ work. (Id. ¶ 26-32.)

128. The Firm, through its Executive Committee, has developed and implemented these rules and regulations without prior notice to, substantive input from, or holding a vote of the full partnership. (Id. ¶ 32.)

129. The Firm, through its Executive Committee, sets policies and issues directives applicable to partners regarding, inter alia, case management procedures, the completion of performance evaluations, submission of time records, billings, and collections. (Id. ¶¶ 26-28, 33, 35.)

130. The full partnership is not given the opportunity to discuss or challenge Firm policies developed by the Executive Committee before the policies are implemented. (Id. ¶ 32.)

131. Partners who disagree with or oppose policies developed by the Executive Committee concerning partners or the Firm as a whole are nonetheless bound by those policies. (Id.)

132. The Firm, through its Executive Committee and through the Department Chairs whom the Executive Committee selects, supervises and directs the work of partners. (Id. ¶¶ 33-38.)

133. The Executive Committee threatens to withhold compensation from partners who fail to comply with Firm policies. (Id. ¶ 33.)

134. The Firm, through its Executive Committee, supervises the work of partners by, inter alia, directing partners to complete annual self-evaluations detailing their work at and contributions to the Firm. (Id. ¶ 40.)

135. Partners are required to report to, and supervised by, the Executive Committee. (Id. ¶¶ 33, 35, 40.)

136. Partners report to, and are supervised by, the Executive Committee in connection with their performance. (Id. ¶¶ 33, 40.)

137. Partners report to, and are supervised by, the Executive Committee in connection with their billable hours. (Id. ¶ 33.)

138. Partners report to, and are supervised by, the Executive Committee in connection with their billings. (Id.)

139. Partners report to, and are supervised by, the Executive Committee in connection with their collections. (Id.)


33

140. The Executive Committee has interjected itself into partners’ management of client matters. (Id. ¶ 35.)

141. Partners are required to report, and supervised by, their Department Chair or Co-Chairs (“Chairs”). (Id. ¶¶ 33-35, 41.)

142. Partners report to, and are supervised by, their Department Chairs in connection with their performance. (Id. ¶¶ 33, 35, 41.)

143. Partners report to, and are supervised by, their Department Chairs in connection with their billable hours. (Id.)

144. Partners report to, and are supervised by, their Department Chairs in connection with their billings. (Id.)

145. Partners report to, and are supervised by, their Department Chairs in connection with case management issues. (Id. ¶ 34.)

146. Department Chairs have inserted themselves into and interfered with partner work and management of client matters. (Id. ¶ 35.)

147. Partners who are not on the Executive Committee have no influence over or involvement the management of the Firm. (Id. ¶ 17.)

148. Partners who are not on the Executive Committee are effectively shut out of meaningful participation in the Firm’s governance. (Id.)

149. The Executive Committee unilaterally determines the voting rights of contract partners. (Id. ¶ 15; Leccese Decl. Ex. 1 § 6(e).)

150. Not all equity partners may be eligible to serve on Proskauer’s Executive Committee or as the Firm Chair. (Plaintiff Decl. ¶ 15; Leccese Decl. Ex. 1 § 7(c).)

151. The Executive Committee hand picks the Department Chairs. (Plaintiff Decl. ¶ 16.)

152. Partners rarely engage in substantive, interactive discussions at partnership meetings. (Id. ¶ 19.)

153. Partners rarely contribute items to the agenda at partnership meetings. (Id.)

154. Proskauer partners do not enjoy profit sharing the way true business owners in partnerships do.

155. Proskauer partners do not have any fixed ownership stake in the Firm or any fixed share of the Firm’s profits or losses. (Id. ¶ 39; Leccese Decl. ¶ 25.)

156. The Executive Committee exercises complete control over partner pay. (Plaintiff Decl. ¶ 39.)


34

157. Proskauer’s Executive Committee changes partner pay from year to year at its discretion – purportedly after the completion of a performance review process. (Id. ¶ 40.)

158. The Executive Committee engages in a process of setting partner pay that is akin to the process the Executive Committee uses to assign performance bonuses to other Firm employees, such as senior staff, senior counsel, and non-equity partners. (Id. ¶ 40.)

159. The Executive Committee does not provide partners with explanation as to the basis for the specific compensation levels assigned to them. (Id. ¶ 42.)

160. The Executive Committee does not provide partners with any opportunity for internal appeal of the Executive Committee’s compensation decisions. (Id.)

161. The Executive Committee also does not disclose its evaluations of partners’ performance or the evaluations of partner’ performance it receives from Department Chairs or Office Heads. (Id.)

162. Partners are denied access to important financial data regarding the Firm. (Id. ¶ 49.)

163. The Executive Committee does not provide partners with performance and compensation information about other partners until after it has made its final partner pay decisions and communicated them to the individual partners. (Id. ¶ 42.)

164. The Executive Committee wields complete discretion and control over the pay assigned to Proskauer partners and any losses charged to them. (Id. ¶ 39.)

165. The Executive Committee sets partners’ monthly draw amounts. (Id. ¶ 47.)

166. The Partnership Agreement contains no provisions exempting partners from the protections of federal, state, or local anti-discrimination laws. (Id. ¶ 5; Leccese Decl. Ex. 1.)

167. Proskauer’s side agreement with Plaintiff contains no provisions exempting Plaintiff from the protections of federal, state, or local anti-discrimination laws. (Plaintiff Decl. ¶ 5; Leccese Decl. Ex. 10.)

168. The protections set forth in Proskauer’s Equal Employment Opportunity and Anti- Harassment Policy apply to the Firm’s partners. (Plaintiff Decl. ¶ 6.)

169. Firm leadership, in particular the Executive Committee and the Department Chairs, is in a position to discriminate and take adverse actions against partners without the input or influence of the partnership. (Plaintiff Decl. ¶ 52.)


35

Dated: July 27, 2017 Respectfully submitted,

David Sanford, D.C. Bar No. 457933 Vince McKnight, D.C. Bar No. 293811

Altomease Kennedy, D.C. Bar No. 229237 Kate Mueting, D.C. Bar No. 988177 SANFORD HEISLER SHARP, LLP

1666 Connecticut Avenue NW, Suite 300 Washington, DC 20009 Telephone: (202) 499-5201

Facsimile: (202) 499-5199 [email protected]

Andrew Melzer* Alexandra Harwin, D.C. Bar No. 1003018 SANFORD HEISLER SHARP, LLP

1350 Avenue of the Americas, 31st Floor New York, New York 10019 Telephone: (646) 402-5655 Facsimile: (646) 402-5651

[email protected] [email protected]

Kevin Sharp* SANFORD HEISLER SHARP, LLP 611 Commerce Street, Suite 3100 Nashville, TN 37203 Telephone: (615) 434-7000 Facsimile: (615) 434-7020 [email protected] *pro hac vice application forthcoming


district of columbia plaintiff, proskauer · pdf filecase no. 1:17-cv-00901-abj...

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